January 4, 2013
SALVATERRA TRUCKING, LLC, PLAINTIFF,
LJS CONSTRUCTION, LLC, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
BROCKWELL & CARRINGTON CONTRACTORS, INC., THIRD-PARTY DEFENDANT/ APPELLANT, AND BERKLEY REGIONAL INSURANCE COMPANY, THIRD-PARTY DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4784-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2012
Before Judges Fisher and Waugh.
Third-party defendant Brockwell & Carrington Contractors, Inc. (Brockwell), appeals the Law Division's order granting summary judgment to third-party plaintiff LJS Construction, LLC (LJS), on its claim for payment for trucking services supplied to Brockwell. We affirm.
We discern the following facts and procedural history from the record on appeal.
Brockwell served as general contractor for the construction of the New Jersey Public Health Agricultural and Environmental Laboratory (Laboratory) in Ewing. It subcontracted with Caro Corporation (Caro) to perform excavation and soil removal work on the site. Caro subcontracted with Salvaterra Trucking, LLC (Salvaterra), to provide the trucks and transport the soil.
Upon determining that more trucks were needed for the project, George R. Danielson, a Brockwell manager, contacted LJS on July 31, 2008, seeking extra trucks for use at the site. Brockwell and LJS entered into an oral agreement requiring LJS to provide the additional trucking services, beginning the following day, for a premium fee. LJS then retained Salvaterra to provide the trucks and move the soil.
Although Salvaterra provided trucks to LJS and performed the required work, it stopped providing trucks to Caro and apparently supplied LJS with the same trucks it had been using to perform its subcontract with Caro. As a consequence, Brockwell did not obtain the net increase in the number of trucks available for use on the project.
Salvaterra billed LJS for the work it performed. LJS subsequently submitted invoices to Brockwell, seeking payment under the terms of the oral agreement. Brockwell took the position that LJS had breached their agreement by utilizing the Salvaterra trucks already on site and under contract with Caro. In Brockwell's view, LJS failed to provide "additional" trucking services because the same Salvaterra trucks were already on site. Thus, Brockwell advised LJS that it would pay only the hourly rate called for by its contract with Caro, rather than the higher rate under LJS's contract.
In June 2010, Salvaterra filed a complaint against LJS seeking payment for the work it had performed. LJS answered and filed a third-party complaint against Brockwell, seeking damages for breach of contract. Brockwell answered, alleging misrepresentation, mutual mistake of fact, and lack of consideration.
In November 2011, LJS moved for summary judgment against Brockwell, which motion was opposed. The motion judge granted the motion in December. Brockwell's motion for reconsideration was denied. This appeal followed.
On appeal, Brockwell argues that the motion judge misinterpreted the contract and that there were genuine issues of material fact precluding summary judgment.
It is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Consequently, we review a grant of summary judgment de novo, applying the same standard as the trial court under Rule 4:46-2(c). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)).
Applying that standard, we must assume for the purposes of this appeal that the oral contract at issue specifically contemplated that LJS would be supplying additional trucks to the Laboratory worksite, as asserted in Danielson's certification. However, we note that Danielson did not certify that LJS agreed not to use a subcontractor, and that Brockwell's answers to requests for admissions conceded that LJS never promised not to utilize a subcontractor.
The problem with Brockwell's argument on appeal is that LJS had no obligation to police Caro's compliance with its obligations under its separate agreement with Brockwell to provide trucking services for the Laboratory project. Brockwell has not demonstrated that LJS was in any way complicit in Caro's apparent breach of it's obligation to provide the initial trucks that LJS was to supplement, which in turn resulted from Salvaterra's apparent decision to supply the trucks on site to LJS rather than to Caro.
The motion judge raised that issue at oral argument on the motion, pointing out that Brockwell never argued that there was a "conspiracy . . . that [Caro] would stop supplying and surreptitiously make a deal with Salvaterra and LJS to have them get more money and probably kick back some to [Caro]." In fact, there is no assertion that anyone at LJS was aware that the Caro trucks were not being supplied or knew that Salvaterra intended to supply the same trucks to LJS that it had been supplying to Caro.
Absent some sort of complicity by LJS, we see no error in the motion judge's decision. LJS provided trucks and there is no basis in the record to conclude that LJS was legally responsible for the fact that they were not "additional" trucks because Caro defaulted on its separate obligation to provide trucks. Brockwell could have, but apparently did not, make a claim against Caro on that issue, although there was litigation between them involving the Laboratory project.
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